Duncan v. Primerica Life Ins. Co. ( 2022 )

1 OPHIR JOHNA (SBN 228193) Ojohna@maynardcooper.com 2 MAYNARD COOPER & GALE LLP 10100 Santa Monica Boulevard 3 Los Angeles, CA 90067 Telephone: 310.596.4500 4 Attorneys for Defendant 5 Primerica Life Insurance Company 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHIRLEY DUNCAN Case No. 2:21-cv-01106-JAM-DMC 12 Plaintiff, (Hon. John A. Mendez) 13 v. STIPULATED PROTECTIVE 14 PRIMERICA LIFE INSURANCE ORDER COMPANY, 15 [L.R. 141.1(b)(1)] Defendant. 16 Complaint Filed: June 22, 2021 17 18 1. A. PURPOSES AND LIMITATIONS 19 Discovery and disclosures in this action are likely to involve production of 20 confidential, proprietary and/or private information for which special protection 21 from public disclosure and from use for any purpose other than prosecuting this 22 litigation may be warranted. Accordingly, the parties hereby stipulate to and 23 petition the Court to enter the following Stipulated Protective Order. The parties 24 acknowledge that this Order does not confer blanket protections on all disclosures 25 or responses to discovery and that the protection it affords from public disclosure 26 and use extends only to the limited information or items that are entitled to 27 confidential treatment under the applicable legal principles. 28 1 B. GOOD CAUSE STATEMENT 2 This action is likely to involve trade secrets and/or other confidential and 3 proprietary materials, such as records reflecting operational policies and procedures, 4 underwriting guidelines, claims manuals and procedures, other company manuals, 5 private information pertaining to individuals, etc., for which special protection from 6 public disclosure and from use for any purpose other than prosecution of this action 7 is warranted. Such confidential and proprietary materials and information consist 8 of, among other things, confidential business or financial information, information 9 regarding confidential business practices and procedures, or other confidential 10 research, development, or commercial information (including information 11 implicating privacy rights of third parties), information otherwise generally 12 unavailable to the public, or which may be privileged or otherwise protected from 13 disclosure under state or federal statutes, court rules, case decisions, or common law. 14 Accordingly, to expedite the flow of information, to facilitate the prompt resolution 15 of disputes over confidentiality of discovery materials, to adequately protect 16 information the parties are entitled to keep confidential, to ensure that the parties are 17 permitted reasonable necessary uses of such material in preparation for and in the 18 conduct of trial, to address their handling at the end of the litigation, and serve the 19 ends of justice, a protective order for such information is justified in this matter. It 20 is the intent of the parties that information will not be designated as confidential for 21 tactical reasons and that nothing be so designated without a good faith belief that it 22 has been maintained in a confidential, non-public manner, and there is good cause 23 why it should not be part of the public record of this case. 24 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 25 SEAL 26 The parties further acknowledge, as set forth in Section 12.3, below, that this 27 Stipulated Protective Order does not entitle them to file confidential information 28 under seal; Local Rule 141 sets forth the procedures that must be followed and the 1 standards that will be applied when a party seeks permission from the court to file 2 material under seal. 3 There is a strong presumption that the public has a right of access to judicial 4 proceedings and records in civil cases. In connection with non-dispositive motions, 5 good cause must be shown to support a filing under seal. See Kamakana v. City and 6 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 7 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 8 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require 9 good cause showing), and a specific showing of good cause or compelling reasons 10 with proper evidentiary support and legal justification, must be made with respect to 11 Protected Material that a party seeks to file under seal. The parties’ mere designation 12 of Disclosure or Discovery Material as CONFIDENTIAL does not— without the 13 submission of competent evidence by declaration, establishing that the material 14 sought to be filed under seal qualifies as confidential, privileged, or otherwise 15 protectable—constitute good cause. 16 Further, if a party requests sealing related to a dispositive motion or trial, then 17 compelling reasons, not only good cause, for the sealing must be shown, and the 18 relief sought shall be narrowly tailored to serve the specific interest to be protected. 19 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each 20 item or type of information, document, or thing sought to be filed or introduced 21 under seal in connection with a dispositive motion or trial, the party seeking 22 protection must articulate compelling reasons, supported by specific facts and legal 23 justification, for the requested sealing order. Again, competent evidence supporting 24 the application to file documents under seal must be provided by declaration. 25 Any document that is not confidential, privileged, or otherwise protectable in 26 its entirety will not be filed under seal if the confidential portions can be redacted. If 27 documents can be redacted, then a redacted version for public viewing, omitting only 28 the confidential, privileged, or otherwise protectable portions of the document, shall 1 be filed. 2 3 2. DEFINITIONS 4 2.1 Action: this pending federal lawsuit. 5 2.2 Challenging Party: a Party or Non-Party that challenges the designation 6 of information or items under this Order. 7 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 8 how it is generated, stored or maintained) or tangible things that qualify for 9 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 10 the Good Cause Statement. 11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 12 their support staff). 13 2.5 Designating Party: a Party or Non-Party that designates information or 14 items that it produces in disclosures or in responses to discovery as 15 “CONFIDENTIAL.” 16 2.6 Disclosure or Discovery Material: all items or information, regardless 17 of the medium or manner in which it is generated, stored, or maintained (including, 18 among other things, testimony, transcripts, and tangible things), that are produced or 19 generated in disclosures or responses to discovery in this matter. 20 2.7 Expert: a person with specialized knowledge or experience in a matter 21 pertinent to the litigation who has been retained by a Party or its counsel to serve as 22 an expert witness or as a consultant in this Action. 23 2.8 House Counsel: attorneys who are employees of a party to this Action. 24 House Counsel does not include Outside Counsel of Record or any other outside 25 counsel. 26 2.9 Non-Party: any natural person, partnership, corporation, association or 27 other legal entity not named as a Party to this action. 28 2.10 Outside Counsel of Record: attorneys who are not employees of a party 1 to this Action but are retained to represent or advise a party to this Action and have 2 appeared in this Action on behalf of that party or are affiliated with a law firm that 3 has appeared on behalf of that party, and includes support staff. 4 2.11 Party: any party to this Action, including all of its officers, directors, 5 employees, consultants, retained experts, and Outside Counsel of Record (and their 6 support staffs). 7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 8 Discovery Material in this Action. 9 2.13 Professional Vendors: persons or entities that provide litigation support 10 services (e.g., photocopying, videotaping, translating, preparing exhibits or 11 demonstrations, and organizing, storing, or retrieving data in any form or medium) 12 and their employees and subcontractors. 13 2.14 Protected Material: any Disclosure or Discovery Material that is 14 designated as “CONFIDENTIAL.” 15 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 16 from a Producing Party. 17 18 3. SCOPE 19 The protections conferred by this Stipulation and Order cover not only 20 Protected Material (as defined above), but also (1) any information copied or 21 extracted from Protected Material; (2) all copies, excerpts, summaries, or 22 compilations of Protected Material; and (3) any testimony, conversations, or 23 presentations by Parties or their Counsel that might reveal Protected Material. 24 Any use of Protected Material at trial shall be governed by the orders of the 25 trial judge. This Order does not govern the use of Protected Material at trial. 26 27 4. DURATION 28 Once a case proceeds to trial, information that was designated as 1 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 2 as an exhibit at trial becomes public and will be presumptively available to all 3 members of the public, including the press, unless compelling reasons supported by 4 specific factual findings to proceed otherwise are made to the trial judge in advance 5 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 6 showing for sealing documents produced in discovery from “compelling reasons” 7 standard when merits-related documents are part of court record). Accordingly, the 8 terms of this protective order do not extend beyond the commencement of the trial. 9 10 5. DESIGNATING PROTECTED MATERIAL 11 5.1 Exercise of Restraint and Care in Designating Material for Protection. 12 Each Party or Non-Party that designates information or items for protection under 13 this Order must take care to limit any such designation to specific material that 14 qualifies under the appropriate standards. The Designating Party must designate for 15 protection only those parts of material, documents, items or oral or written 16 communications that qualify so that other portions of the material, documents, items, 17 or communications for which protection is not warranted are not swept unjustifiably 18 within the ambit of this Order. 19 Mass, indiscriminate or routinized designations are prohibited. Designations 20 that are shown to be clearly unjustified or that have been made for an improper 21 purpose (e.g., to unnecessarily encumber the case development process or to impose 22 unnecessary expenses and burdens on other parties) may expose the Designating 23 Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it 25 designated for protection do not qualify for protection, that Designating Party must 26 promptly notify all other Parties that it is withdrawing the inapplicable designation. 27 5.2 Manner and Timing of Designations. Except as otherwise provided in 28 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 1 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 2 under this Order must be clearly so designated before the material is disclosed or 3 produced. 4 Designation in conformity with this Order requires: 5 (a) for information in documentary form (e.g., paper or electronic documents, 6 but excluding transcripts of depositions or other pretrial or trial proceedings), that 7 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 8 “CONFIDENTIAL legend”), to each page that contains protected material. If only 9 a portion of the material on a page qualifies for protection, the Producing Party also 10 must clearly identify the protected portion(s) (e.g., by making appropriate markings 11 in the margins). 12 A Party or Non-Party that makes original documents available for inspection 13 need not designate them for protection until after the inspecting Party has indicated 14 which documents it would like copied and produced. During the inspection and 15 before the designation, all of the material made available for inspection shall be 16 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 17 documents it wants copied and produced, the Producing Party must determine which 18 documents, or portions thereof, qualify for protection under this Order. Then, before 19 producing the specified documents, the Producing Party must affix the 20 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 21 portion or portions of the material on a page qualifies for protection, the Producing 22 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 23 markings in the margins). 24 (b) for testimony given in depositions, that the Designating Party identify the 25 Disclosure or Discovery Material on the record or within thirty (30) days after 26 delivery of the deposition transcript by the court reporter. 27 (c) for information produced in some form other than documentary and for 28 any other tangible items, that the Producing Party affix in a prominent place on the 1 exterior of the container or containers in which the information is stored the legend 2 “CONFIDENTIAL.” If only a portion or portions of the information warrants 3 protection, the Producing Party, to the extent practicable, shall identify the protected 4 portion(s). 5 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 6 failure to designate qualified information or items does not, standing alone, waive 7 the Designating Party’s right to secure protection under this Order for such material. 8 Upon timely correction of a designation, the Receiving Party must make reasonable 9 efforts to assure that the material is treated in accordance with the provisions of this 10 Order. 11 12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 13 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 14 designation of confidentiality at any time that is consistent with the Court’s 15 Scheduling Order. 16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 17 resolution process under Local Rule 251 et seq. 18 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 19 joint stipulation pursuant to Local Rule 251. 20 6.4 The burden of persuasion in any such challenge proceeding shall be on 21 the Designating Party. Frivolous challenges, and those made for an improper 22 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 23 parties) may expose the Challenging Party to sanctions. Unless the Designating 24 Party has waived or withdrawn the confidentiality designation, all parties shall 25 continue to afford the material in question the level of protection to which it is 26 entitled under the Producing Party’s designation until the Court rules on the 27 challenge. 28 1 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A Receiving Party may use Protected Material that is 3 disclosed or produced by another Party or by a Non-Party in connection with this 4 Action only for prosecuting, defending or attempting to settle this Action. Such 5 Protected Material may be disclosed only to the categories of persons and under the 6 conditions described in this Order. When the Action has been terminated, a 7 Receiving Party must comply with the provisions of section 13 below (FINAL 8 DISPOSITION). 9 Protected Material must be stored and maintained by a Receiving Party at a 10 location and in a secure manner that ensures that access is limited to the persons 11 authorized under this Order. 12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 13 otherwise ordered by the court or permitted in writing by the Designating Party, a 14 Receiving Party may disclose any information or item designated 15 “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 17 as employees of said Outside Counsel of Record to whom it is reasonably necessary 18 to disclose the information for this Action; 19 (b) the officers, directors, and employees (including House Counsel), if any, 20 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 21 (c) Experts (as defined in this Order) of the Receiving Party to whom 22 disclosure is reasonably necessary for this Action and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (d) the court and its personnel; 25 (e) court reporters and their staff; 26 (f) professional jury or trial consultants, mock jurors, and Professional 27 Vendors to whom disclosure is reasonably necessary for this Action and who have 28 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 (g) the author or recipient of a document containing the information or a 2 custodian or other person who otherwise possessed or knew the information; 3 (h) during their depositions, witnesses, and attorneys for witnesses, in the 4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 5 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 6 not be permitted to keep any confidential information unless they sign the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 8 agreed by the Designating Party or ordered by the court. Pages of transcribed 9 deposition testimony or exhibits to depositions that reveal Protected Material may 10 be separately bound by the court reporter and may not be disclosed to anyone except 11 as permitted under this Stipulated Protective Order; and 12 (i) any mediator or settlement officer, and their supporting personnel, 13 mutually agreed upon by any of the parties engaged in settlement discussions. 14 15 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 16 IN OTHER LITIGATION 17 If a Party is served with a subpoena or a court order issued in other litigation 18 that compels disclosure of any information or items designated in this Action as 19 “CONFIDENTIAL,” that Party must: 20 (a) promptly notify in writing the Designating Party. Such notification shall 21 include a copy of the subpoena or court order; 22 (b) promptly notify in writing the party who caused the subpoena or order to 23 issue in the other litigation that some or all of the material covered by the subpoena 24 or order is subject to this Protective Order. Such notification shall include a copy of 25 this Stipulated Protective Order; and 26 (c) cooperate with respect to all reasonable procedures sought to be pursued 27 by the Designating Party whose Protected Material may be affected. 28 If the Designating Party timely seeks a protective order, the Party served with 1 the subpoena or court order shall not produce any information designated in this 2 action as “CONFIDENTIAL” before a determination by the court from which the 3 subpoena or order issued, unless the Party has obtained the Designating Party’s 4 permission. The Designating Party shall bear the burden and expense of seeking 5 protection in that court of its confidential material and nothing in these provisions 6 should be construed as authorizing or encouraging a Receiving Party in this Action 7 to disobey a lawful directive from another court. 8 9 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 10 PRODUCED IN THIS LITIGATION 11 (a) The terms of this Order are applicable to information produced by a Non- 12 Party in this Action and designated as “CONFIDENTIAL.” Such information 13 produced by Non-Parties in connection with this litigation is protected by the 14 remedies and relief provided by this Order. Nothing in these provisions should be 15 construed as prohibiting a Non-Party from seeking additional protections. 16 (b) In the event that a Party is required, by a valid discovery request, to 17 produce a Non-Party’s confidential information in its possession, and the Party is 18 subject to an agreement with the Non-Party not to produce the Non-Party’s 19 confidential information, then the Party shall: 20 (1) promptly notify in writing the Requesting Party and the Non-Party that 21 some or all of the information requested is subject to a confidentiality agreement 22 with a Non-Party; 23 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 24 Order in this Action, the relevant discovery request(s), and a reasonably specific 25 description of the information requested; and 26 (3) make the information requested available for inspection by the Non- 27 Party, if requested. 28 (c) If the Non-Party fails to seek a protective order from this court within 14 1 days of receiving the notice and accompanying information, the Receiving Party 2 may produce the Non-Party’s confidential information responsive to the discovery 3 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 4 not produce any information in its possession or control that is subject to the 5 confidentiality agreement with the Non-Party before a determination by the court. 6 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 7 of seeking protection in this court of its Protected Material. 8 9 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 10 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 11 Protected Material to any person or in any circumstance not authorized under this 12 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 13 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 14 to retrieve all unauthorized copies of the Protected Material, (c) inform the person 15 or persons to whom unauthorized disclosures were made of all the terms of this 16 Order, and (d) request such person or persons to execute the “Acknowledgment and 17 Agreement to Be Bound” that is attached hereto as Exhibit A. 18 19 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 20 PROTECTED MATERIAL 21 When a Producing Party gives notice to Receiving Parties that certain 22 inadvertently produced material is subject to a claim of privilege or other 23 protection, the obligations of the Receiving Parties are those set forth in Federal 24 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 25 whatever procedure may be established in an e-discovery order that provides for 26 production without prior privilege review. Pursuant to Federal Rule of Evidence 27 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 28 of a communication or information covered by the attorney-client privilege or work 1 product protection, the parties may incorporate their agreement in the stipulated 2 protective order submitted to the court. 3 4 12. MISCELLANEOUS 5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 6 person to seek its modification by the Court in the future. 7 12.2 Right to Assert Other Objections. By stipulating to the entry of this 8 Protective Order, no Party waives any right it otherwise would have to object to 9 disclosing or producing any information or item on any ground not addressed in this 10 Stipulated Protective Order. Similarly, no Party waives any right to object on any 11 ground to use in evidence of any of the material covered by this Protective Order. 12 12.3 Filing Protected Material. A Party that seeks to file under seal any 13 Protected Material must comply with Local Civil Rule 141. Protected Material may 14 only be filed under seal pursuant to a court order authorizing the sealing of the 15 specific Protected Material at issue. If a Party’s request to file Protected Material 16 under seal is denied by the court, then the Receiving Party may file the information 17 in the public record unless otherwise instructed by the court. 18 19 13. FINAL DISPOSITION 20 After the final disposition of this Action, as defined in paragraph 4, within 60 21 days of a written request by the Designating Party, each Receiving Party must return 22 all Protected Material to the Producing Party or destroy such material. As used in 23 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 24 summaries, and any other format reproducing or capturing any of the Protected 25 Material. Whether the Protected Material is returned or destroyed, the Receiving 26 Party must submit a written certification to the Producing Party (and, if not the same 27 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 28 (by category, where appropriate) all the Protected Material that was returned or 1 destroyed and (2) affirms that the Receiving Party has not retained any copies, 2 abstracts, compilations, summaries or any other format reproducing or capturing any 3 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 4 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 5 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 6 reports, attorney work product, and consultant and expert work product, even if such 7 materials contain Protected Material. Any such archival copies that contain or 8 constitute Protected Material remain subject to this Protective Order as set forth in 9 Section 4 (DURATION). 10 11 14. VIOLATION 12 Any violation of this Order may be punished by appropriate measures 13 including, without limitation, contempt proceedings and/or monetary sanctions. 14 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 15 16 DATED: June 1, 2022 LAW OFFICES OF DANIEL S. 17 GLASS 18 /s/ Daniel S. Glass (as authorized on 19 By: 6/1/22) Daniel S. Glass 20 Attorneys for Plaintiff Shirley Duncan 21 22 23 DATED: June 1, 2022 MAYNARD, COOPER & GALE LLP 24 By: /s/ Ophir Johna 25 Ophir Johna 26 Attorneys for Defendant Primerica Life Insurance Company 27 28 2 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 4 Dated: June 3, 2022 Ssvcqo_ 5 DENNIS M. COTA ‘ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “16. 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 __________________________________________________________________ 6 _ [print or type full address], declare under penalty of perjury that I have read in its 7 entirety and understand the Stipulated Protective Order that was issued by the United 8 States District Court for the Central District of California on ____________ [date] 9 in the case of Shirley Duncan v. Primerica Life Insurance Company, Case No. 2:21- 10 cv-01106-JAM-DMC. I agree to comply with and to be bound by all the terms of 11 this Stipulated Protective Order and I understand and acknowledge that failure to so 12 comply could expose me to sanctions and punishment in the nature of contempt. I 13 solemnly promise that I will not disclose in any manner any information or item that 14 is subject to this Stipulated Protective Order to any person or entity except in strict 15 compliance with the provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court 17 for the Eastern District of California for the purpose of enforcing the terms of this 18 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. I hereby appoint __________________________ [print 20 or type full name] of ________________________________________ [print or 21 type full address and telephone number] as my California agent for service of process 22 in connection with this action or any proceedings related to enforcement of this 23 Stipulated Protective Order. 24 Date: ________________________________ 25 City and State where sworn and signed: ____________________________ 26 Printed name: _______________________________ 27 Signature: __________________________________ 28